Law before politics: The Court affirms the constitutional power to solve national problems

Posted Fri, June 29th, 2012 3:41 pm by Elizabeth Wydra

The following contribution to our post-decision symposium on the health care cases is written by Elizabeth B. Wydra, the Constitutional Accountability Center’s Chief Counsel. Elizabeth frequently participates in Supreme Court litigation and has argued several important cases in the federal courts of appeals. She joined CAC from private practice at Quinn Emanuel Urquhart Oliver & Hedges in San Francisco, where she was an attorney in the firm’s Supreme Court/appellate practice.

With all the conspiracy theories and vote-switching speculation swirling around Chief Justice John Roberts’s vote to uphold the constitutionality of the Affordable Care Act, everyone is missing the most obvious reason—Roberts clearly forgot Don Verrilli’s birthday (June 29) last year and felt like he needed to get him something really, really good this year. Happy birthday, Solicitor General!

In all seriousness, before and after the healthcare ruling many observers mulled over the many reasons why the Chief Justice might be inclined to vote to uphold the Act, from legacy concerns to (rather ridiculous) claims of liberal intimidation to a “secret agenda.” But what about the possibility that he voted with the more liberal Justices to affirm that the Constitution empowers the federal government to create national solutions to national problems—rejecting the cramped view of federal authority advocated by the ACA challengers and adopted by the joint dissent—simply because that is what he felt he was compelled to do based on his understanding of the law?

As Justice Ginsburg explained in her excellent opinion concurring in part and dissenting in part, the Constitution improved upon the dysfunctional Articles of Confederation—which, notably, did not give the central government the power to regulate interstate commerce or levy taxes—by establishing a federal government up to the task of governing the new nation. Justice Ginsburg specifically cited to Resolution VI, adopted by the Constitutional Convention to guide the delegates drafting the Constitution’s specific list of powers, which declared that the national government should have the power to pass legislation “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.” Among these specific powers were, of course, the authority to regulate interstate commerce, tax and spend for the general welfare, and pass laws “necessary and proper” to executing these specific powers.

Four of the Justices in the majority would have—correctly, in my view—upheld the ACA’s minimum coverage provision under the Commerce Clause. Chief Justice Roberts, writing for himself alone, rejected the government’s Commerce Clause argument. But, by finding that the so-called individual mandate was constitutionally enacted under the tax power, the Court majority definitely rejected a centerpiece argument of the tea party movement and other conservatives: that “Obamacare” was an unconstitutional federal overreach. Coming from Chief Justice Roberts, this is a serious blow.

Given what we know about the Chief Justice’s background and politics, is it likely that he would have preferred to strike down the Act? Yes, quite likely. While noting that the Court should be reluctant to invalidate legislation passed by our democratically-elected representatives, Chief Justice Roberts was careful to say that the Court’s task was to pass on the law’s constitutionality, not its wisdom. It bears noting that this focus—the law’s constitutionality, not its political merits—is attributable to the four more liberal Justices who joined the majority opinion, as well. These Justices were far more likely to have been motivated by the compelling constitutional text and history detailed by Justice Ginsburg than by pure political preference, even if they personally supported healthcare reform.

Why does this matter? Because so many jaded Washingtonians shrugged their shoulders before the ruling came down and dismissed the whole thing as “just politics.” But the ruling actually says something about the Constitution and the role of the federal government—namely, that the Constitution empowers the federal government to respond to national problems like the health care crisis through comprehensive regulation like the Affordable Care Act.

The Supreme Court’s decision to uphold the Affordable Care Act in its entirety was obviously a victory for the Obama Administration, which saw the President’s signature legislative achievement affirmed as constitutional, and it was also a winning moment for judicial independence. While this unquestionably burnishes Chief Justice Roberts’s legacy, I find it hard to believe that he would have voted the way he did if he did not think upholding the ACA was justified by the law. That preserves the integrity of the Court as an institution worthy of the high regard in which the public has traditionally held it and maintains the Constitution as the touchstone of our justice system.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.